A prenuptial (prenup) agreement that occurs after marriage is called a postnuptial (postnup) agreement. Each state has its own laws when it comes to prenups and postnups. But can you get a prenup after marriage in Ohio?
If you’re considering a prenup but you’ve already gotten married, it may be too late depending on where you live. In Ohio, you cannot obtain a postnuptial agreement — meaning you cannot get a prenup after marriage. Ohio is one of the few jurisdictions in the country that strictly prohibits married couples from obtaining postnuptial agreements.
The Ohio Revised Code Section 3103.06 states that married couples can only contractually alter their marriage through the process of divorce, dissolution, or legal separation. That means while married, couples cannot make changes to their marriage through a postnuptial agreement.
It is well known that Ohio courts rigidly apply the Ohio Revised Code Section 3103.06 in holding that postnuptial agreements are void and unenforceable. Let’s say you are already married and have a postnuptial agreement created in a different state, but you move to Ohio — Ohio courts will view that agreement as void and unenforceable.
Some states do allow postnuptial agreements. For example, Massachusetts courts allow postnuptial agreements, but they are far more strict with enforcing them compared to prenuptial or separation agreements.
The best scenario for couples in Ohio is to have open and honest communication with your soon-to-be spouse prior to the marriage. Consider pursuing a prenuptial agreement beforehand so that all of your bases are covered. It’s better to look into a prenup before marriage than to get married and wish you had pursued one.
All About Prenuptial Agreements
Each state designates its own components for prenuptial agreements. In Ohio, prenuptial agreements are controlled by the Ohio state law and not the Uniform Prenuptial Agreement Act (UPAA) that is widely being adopted in other parts of the country.
In Ohio, prenuptial agreements are called “antenuptial agreements” and are typically filed under Ohio family law. For a prenup to be valid in the state of Ohio, it must meet the following requirements:
- Both parties must enter into the agreement freely and voluntarily
- Specified terms must not in any way encourage divorce
- The contract must be entered into without coercion, fraud, or duress
- There must be complete and accurate disclosure of the value of each party’s property
- The agreement is reasonably fair to both parties
If you are considering a prenup, the first step is to talk to your soon-to-be spouse. Start the discussion as soon as possible because the prenup process can take time to prepare and for the courts to review. Next, it’s important to turn to an experienced family lawyer who can guide you and your significant other through the process.
In a prenup, a couple can determine and agree to a variety of items, including:
- Alimony payments (which are reviewed by the court at time of divorce)
- Property allocation
- Rights surrounding the sale, usage, or transfer of property during the marriage
- Division of assets
- Rights to gifts or inheritance
- Business management
- Death benefits
If you live in Ohio, your best bet is to discuss a prenup prior to marriage. If you’re already married, talk to an experienced family lawyer about your options. He or she may be able to help.
Columbus Ohio Family Law Attorney
The Law Offices of Kenneth R. Kline LLC is honored to work with both traditional and non-traditional families to assist them through extraordinarily difficult times. Please contact us with any questions.